R v Towgood

[2007] NZCA 359

ORDER PROHIBITING PUBLICATION OF JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA480/06 [2007] NZCA 359

THE QUEEN

v

DUANE BRIAN TOWGOOD

Hearing:         19 June 2007

Court:            Hammond, Randerson and Williams JJ Counsel:        C Muston for Appellant

K B F Hastie for Crown

Judgment:      23 August 2007         at 10 am

JUDGMENT OF THE COURT

AThe appeal against conviction on the charge of attempted manufacturing of methamphetamine is allowed.  A retrial is ordered on that charge.

BThe appeal against sentence is allowed and a sentence of two years imprisonment substituted on each of the charges of possession of equipment and precursor substances.

C        Leave to apply for home detention is declined.

R V TOWGOOD CA CA480/06  23 August 2007

DOrder prohibiting publication of judgment and the reasons therefor in news media or on internet or other publicly accessible database until final  disposition  of  re-trial.    Publication  in  law  report  or  law  digest

permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]      After  a  jury  trial  at  Whangarei  at  which  Baragwanath  J  presided,  the appellant was convicted of three drug offences and sentenced to four years imprisonment.

[2]    The indictment originally charged the appellant with manufacturing methamphetamine at Whangarei on or about 14 October 2005.  He was also charged with possession of equipment and precursor substances for the purpose of manufacturing methamphetamine.  There is no challenge to his conviction on these two counts.

[3]      On the manufacturing count, it was not until after the closing addresses of counsel at the end of the trial that the trial judge informed counsel he intended to direct   the   jury   that,   if   they   were   not   satisfied   the   Crown   had   proved methamphetamine had actually been manufactured, it was open for them to find the appellant guilty instead of an attempt to manufacture methamphetamine.   Neither counsel at trial objected to that course.

[4]      In the event, the appellant was acquitted on the charge of manufacturing but convicted of the attempt.  A co-accused (Mr Tuki) was acquitted on all charges.

[5]      The   appellant   now   appeals   against   his   conviction   on   the   attempted manufacturing charge on the grounds that it should not have been left to the jury and that the Judge’s direction to the jury on that charge was inadequate.  The appellant also appeals against his sentence on the ground it was manifestly excessive.

Background facts

[6]      On 14 October 2005, the police executed a search warrant at the appellant’s address  in  Whangarei.    The  appellant  and  the  alleged  co-offender  were  found standing by a bench in a garage on the property.  A strong smell of chemicals was noticed  and  other  officers  with  experience  in  clandestine  laboratory  cases  were called in.

[7]      Located in the garage were a number of items of equipment and substances commonly used in the manufacture of methamphetamine.  On a bench in the garage, a sports bag was located which contained what was described as a “portable meth kit”.  This contained all the equipment necessary to convert pharmaceutical drugs to pseudoephedrine.   The appellant’s fingerprint was identified on a recently cleaned pyrex measuring jug.

[8]      Also located in the garage were all but two of the chemicals required to convert pseudoephedrine to methamphetamine; a 20 litre container of toluene; a Glenfiddich whisky bottle (two-thirds full) which contained pseudoephedrine; empty containers of caustic soda and acetone; iodine and sulphuric acid and other items such as funnels, bottles, jars, filter papers and pyrex jugs.

[9]      Inside the house, in a chest of drawers in the appellant’s bedroom, the police located a document in the appellant’s handwriting containing recipes for the manufacture of methamphetamine.

[10]     The appellant gave evidence in his defence.  He denied being involved in any way in the manufacture of methamphetamine.  His evidence was that he had come home from work on the day in question because he had received a report that other people were at his property and had entered his garage.  He spoke to these people who then left the property.   He went into the garage and noticed the sports bag partially hidden.  He pulled it out, placed it on the bench and began unpacking it to see what was inside.   He denied any prior knowledge of the contents of the bag which  he  said  had  been  left  there  by a  person  he named  as  Jesse  Nash.    The fingerprint on the measuring jug was placed there when he removed it from the bag.

He then did some spray painting on a vehicle in the garage which, he said, accounted for the chemical smell.  Mr Tuki arrived at the property and, not long afterwards, the police  arrived.    By  that  stage  the  appellant  said  he  had  begun  to  repack  the equipment into the sports bag with a view to disposing of it.

[11]     In cross-examination, the appellant accepted that some of the items found in the garage were his but said none were used for any purpose associated with the manufacture of illegal drugs.  He maintained that the Glenfiddich bottle containing pseudoephedrine had been in the sports bag and was one of the items he removed prior to the arrival of the police.

The scientific evidence

[12]     The  principal  ESR  witness  was  a  forensic  scientist,  Mr  Gatenby.    His evidence, which is not in dispute, can be summarised as follows:

a)       At some stage, methamphetamine had been manufactured using the items  found  in  the  garage  but  he  could  not  say  when  that  had occurred.

b)       No methamphetamine was located at the garage in usable quantities.

The   only   methamphetamine   found   was   in   trace   quantities. Mr Gatenby accepted the possibility that this residue was the result of manufacturing elsewhere.

c)        It was not possible to say when the pseudoephedrine was made.

d)Not all chemicals necessary to convert pseudoephedrine to methamphetamine were present.    In particular, there was no hypophosphorous acid or red phosphorous or hydriodic acid.

e)       The manufacture of methamphetamine occurs in three main stages which may occur on separate occasions, some time apart.  The first is the extraction of pseudoephedrine from tablets, capsules and liquids using a caustic solution.    The second is the conversion of pseudoephedrine to methamphetamine.  The third is the extraction of the methamphetamine base, usually with a solvent such as toluene or

acetone  or  by a  distillation  process.    This  results  in  a  crystalline powder precipitating out of the liquid produced by the prior processes.

f)        The smell of spray paint could be mistaken for toluene because the latter is also used as a paint thinner.

The appellant’s argument on appeal

[13]     Advancing the argument for the appellant, Mr Muston first submitted that the Judge should not have put the alternative manufacturing charge to the jury, citing the principles summarised by Fisher J in R v Mokaraka [2002] 1 NZLR 793 at [12]-[20]. He submitted it was contrary to the interests of justice to put the attempted manufacturing charge to the jury because it did not arise in the way in which the case was presented to the Court. The appellant did not deny that manufacturing had occurred at some previous time. His case was that he had not been involved.

[14]     It is unnecessary for us to determine this issue since we are satisfied that Mr Muston is on firm ground in submitting that the directions to the jury on the attempted manufacturing charge were inadequate.  However, real caution is needed before an alternative charge is introduced at such a late stage of the trial.  Here, the Judge introduced the alternative charge after all the evidence was complete and the closing addresses of counsel delivered.  The possibility of an alternative charge had not been raised by the Crown, the evidence did not canvass it, and counsel did not have the opportunity of referring to it in their closing addresses.

The Judge’s direction on attempted manufacturing

[15]     The Judge gave the following direction to the jury in writing and repeated it when addressing the jury orally:

If you were not satisfied that on or about 14 October 2005 methamphetamine was in fact brought into a form suitable for use but you were satisfied that cooking was being done with the purpose of bringing methamphetamine into a form suitable for use it would be open to you to find the cook not guilty of the full offence but guilty of an attempt to commit the offence.  That’s what you would tell us Mr Foreman at the end.  Asked in relation to count 1 you would say in relation to the cook not guilty but guilty of attempt.

Discussion

[16]     Section 72 Crimes Act 1961 provides:

72     Attempts

(1)     Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2)    The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3)     An  act  done  or  omitted  with  intent  to  commit  an  offence  may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

[17]     Counsel were agreed on the essential principles.   It is for the Judge, as a matter of law, to decide whether an act done with the necessary intent is sufficiently proximate to amount to an attempt rather than mere preparation.  It is then a matter for the jury to decide the factual issue whether the acts concerned were carried out by the accused and, if so, with the necessary intent:  R v Ostler & Christie [1941] NZLR 318.

[18]     The issue is whether the act or omission concerned constitutes a real or substantial step towards the commission of the offence:   Police v Wylie [1976]

2 NZLR 167.

[19]     The adequacy of the Judge’s direction must be considered against the factual background already described.  The Crown’s prospects of establishing the complete offence of manufacturing methamphetamine on or about 14 October 2005 were not particularly strong since the forensic evidence did not establish with any certainty when or where the manufacturing had taken place.  On the evidence, as the Judge accepted in directing the jury, it must have happened on some occasion prior to the search on 14 October.  But, in the absence of evidence to establish to the required standard when that manufacturing occurred, it was likely to be difficult for the Crown to prove that the appellant had been involved.

[20]   The extraction of pseudoephedrine is the first step in the process of manufacturing methamphetamine and, on the basis of the decision of this Court in R v Townsend CA 141/05 30 March 2006, we accept that, in the context of an attempt, the extraction of pseudoephedrine is capable of amounting to an act undertaken for the purpose of manufacturing methamphetamine:  (see the discussion at [26]).

[21]     Applying the accepted principles, it follows that, for the purpose of proving the attempted manufacture, the Crown needed to prove beyond reasonable doubt that the appellant:

a)        Intended to manufacture methamphetamine; and

b)       Did an act or acts for the purpose of accomplishing that object.

[22]     Central to those questions was the need to identify the acts relied upon and to direct the jury on the  crucial issue of proximity.   We are satisfied the  Judge’s direction was inadequate in that:

a)       It did not clearly focus on the two steps of intention to manufacture methamphetamine and the doing of an act or acts for the purpose of achieving that object.

b)It did not identify the act or acts said to have been taken by the appellant in pursuance of the objective of manufacturing methamphetamine.    To  refer  to  being  satisfied  that  “cooking  was being done” was not sufficient to identify the steps concerned.   As Mr Gatenby’s evidence established, there were three principal steps. The jury should not have been left to guess what steps were said to have been taken or were being taken.

c)       There was no direction on the issue of proximity.  Critically, the jury needed to decide whether the acts done were sufficiently proximate to the manufacture or whether they were merely preparatory.  This was a live issue given that the acts undertaken must have occurred at some stage prior to the search.  The concession by Mr Gatenby meant it was

not possible to say how long before the search the pseudoephedrine had been made.  Nor was Mr Gatenby able to exclude the possibility that the pseudoephedrine had been made elsewhere.   The issues of when, where and by whom any steps had been taken towards the manufacture of methamphetamine were all before the jury.

d)There was no clear direction to the jury that the Crown had to prove it was the appellant who had the necessary intent and that it was he who had taken the prior steps said to constitute the attempt.  If the relevant steps had been taken at the appellant’s property, there was a clear link to him.   However, if the prior steps had been taken elsewhere, the evidence linking the appellant  with  those events  was  significantly weakened.

[23]     We conclude that the inadequacy of the direction gave rise to a real risk of a miscarriage of justice.   The appeal must be allowed and a re-trial directed on the attempted manufacturing count.   It will be a matter for the Crown to determine whether it will proceed with a retrial.

The sentence appeal

[24]     The Judge accepted the Crown’s submission that the correct approach was to place the offending in band two in R v Fatu [2006] 2 NZLR 72 which, for the complete offence of manufacturing, would require a range of four to eleven years imprisonment. He concluded that this range should be reduced by half (two years to five and a half years) taking into account that the maximum penalty for attempted manufacturing methamphetamine was 10 years under s 311 Crimes Act.

[25]     The Judge considered the proper starting point was towards the bottom of the range and adopted a three-year starting point.   He then added 18 months for the appellant’s prior drug convictions to reach four and a half years.  Six months was then deducted for personal factors to arrive at the final sentence of four years imprisonment imposed on each of the three offences for which the appellant was convicted.

[26]     There was no separate consideration of the level of sentence appropriate to the two possession charges.   It is reasonable to assume the Judge took those into account when assessing the appropriate penalty for the lead offence of attempted manufacture of methamphetamine.

[27]     Given  our  conclusion  that  the  appeal  must  be  allowed  in  respect  of  the attempted manufacturing charge, we must allow the sentence appeal and fix  an appropriate sentence for the two possession charges.

[28]     Mr Muston submitted that the appropriate sentence on those charges was between one and two years imprisonment while Ms Hastie submitted that a sentence of at least two years imprisonment was required on those charges and that a higher sentence could be justified in the circumstances.

[29]     The maximum penalty for each of the possession charges was five years imprisonment.  A complete manufacturing kit for the production of pseudoephedrine was found at the appellant’s premises.   Plainly, the jury rejected the appellant’s evidence that the kit belonged to someone else.   An aggravating factor is the appellant’s previous drug related offending.   In August 2004 he was sentenced to two years imprisonment on charges of manufacturing methamphetamine and possession of equipment.  In 1998 he was sentenced to one years imprisonment on charges of selling cannabis oil, possession of cannabis oil for supply and possession of LSD.

[30]     In all the circumstances, we consider that the appropriate sentence on the two possession charges is two years imprisonment.   The sentence of four years imprisonment is set aside and a sentence of two years imprisonment is substituted on each of the possession charges, those terms to be served concurrently.

[31]     This is not a case where it is appropriate to grant leave to the appellant to apply for home detention.  The offending is relatively serious and it took place at the appellant’s residence.

Solicitors

Crown Law Office, Wellington